Legal experts say it is a virtual certainty that federal prosecutors will pursue the death penalty against the man arrested after a shooting that killed six people and wounded Rep. Gabrielle Giffords and 12 others in Tucson.
But that won’t stop his lawyers from trying to talk them out of it, something that they have a right to do under the federal government’s unusual process for making decisions on death penalty prosecutions. That’s in stark contrast to most state death penalty cases, where local prosecutors normally make the decisions on their own.
Lead attorney Judy Clarke will have as many as three chances before Jared Loughner goes to trial to persuade federal prosecutors not to pursue a death case.
The chances of Clarke succeeding at this stage: Slim, fellow lawyers say.
“It would, based on what I know only in the newspapers, take an extraordinary set of circumstances to tell me that the U.S. attorney’s office or the Department of Justice would not seek the death penalty,” said former U.S. attorney for Arizona Paul Charlton, who is now in private practice.
The 22-year-old suspect in the shooting at a Giffords event on Jan. 8 is being held without bail in a federal facility in Arizona. He has pleaded not guilty to federal charges of trying to assassinate Giffords and kill two of her aides. The indictment replaced an earlier federal complaint that also charged him with murder for the deaths of U.S. District Judge John Roll and Giffords aide Gabe Zimmerman.
Another indictment that would restore those murder charges is expected by March 9. A decision on whether to pursue a capital case could come later.
Decisions on federal death penalty prosecutions are controlled by complex rules set up by the U.S. Department of Justice. If the local U.S. attorney decides to pursue death in a case, they must provide a case synopsis that includes information about motive and intent and aggravating factors along with a recommendation to a ‘capital review committee’ at Justice Department headquarters in Washington.
The packet also must include the defendant’s criminal record, the crime’s impact on victims and the family, evidence and applicable law and a recommendation from the local U.S. attorney. All will be used to come up with a committee recommendation to be sent to the U.S. attorney general.
In Loughner’s case, U.S. Attorney General Eric Holder must then personally give the OK to proceed. The process remains confidential until the attorney general makes a decision, which is binding on his prosecutors.
Under those federal rules, the defense team led by Clarke will be also be allowed to make a case against a death penalty prosecution at both the local U.S. attorney level and during the Justice Department review. Such efforts would probably include a presentation about mitigating factors such as Loughner’s mental state and upbringing, according to attorneys who have defended federal death penalty cases. Clarke did not respond to messages seeking comment.
Whether Clarke’s efforts will help is another matter.
“She’s going to go down to the DOJ at some point in time and make arguments about why the death penalty ought not to apply in that case,” said David Grant, a Cleveland lawyer who defended a woman facing the federal death penalty in 2007. “And I’m sure she’ll make a vigorous, thorough presentation.
“But I would speculate that given the type of case this is, those arguments are ultimately going to fall on deaf ears — even though you probably have a better shot with this administration than the prior administration.”
Federal death penalty prosecutions are relatively rare, and statistics show they result in an actual death sentence less than 20 percent of the time.
Of 445 cases concluded between 1988 and Jan. 6, 2011, only 69 death sentences have been imposed and three people actually executed, according to statistics compiled by the Federal Death Penalty Resource Counsel Project. The group was created by the office of federal defender services and serves as a clearinghouse for information needed by lawyers who defend death penalty cases. Nearly half the cases were settled with plea bargains, and in 139 cases that resulted in convictions juries or a judge decided on a life prison term.
Those executed include Oklahoma City bomber Timothy McVeigh in June 2001, Juan Raul Garza, a Texas drug kingpin and murderer, also in June 2011. Decorated Gulf War veteran Louis Jones Jr. was executed in March 2003. He had kidnapped, raped and killed a female soldier. The three are the only federal prisoners executed after 1963.
Clarke has a long track record of sparing her clients the death penalty. “Unabomber” Ted Kaczynski and Eric Rudolph, who bombed abortion clinics in the late 1990s and Atlanta’s Olympic park in 1996, avoided death through plea agreements she helped negotiate. She also negotiated a plea sparing white supremacist Buford Furrow Jr. from death. He shot up a Jewish center in Los Angeles in 1999.
Just having the chance to try to persuade a prosecutor not to seek the death penalty is unusual, said John Bryson, a defense attorney in High Point, N.C., who defended a federal death penalty case last year.
“I’ll give the (Department of Justice) credit for at least coming up with this review process,” Bryson said. “They want to be in a situation where they can say ‘we don’t automatically pursue the death penalty in a case. We do exercise our discretion. We have meetings with the defense counsel and give them the opportunity to be heard.’
“In that regard, it’s nice that you do have that opportunity,” Bryson said. “Some state court jurisdictions, the decision is essentially made by one person, and it’s their opinion.”
There is no hard deadline for federal prosecutors to make a decision on how to proceed, but department rules suggest that enough time be allowed for both the 90-day review process and the filing of legal notices of the decision before trial starts.
That means federal prosecutors in Arizona are already putting together their case for a death penalty prosecution. U.S. attorney for Arizona Dennis Burke has called the task “a deliberate and thorough process.” His office said last week that it was still working on the local review.
Charlton, who was fired in 2006 by then-Attorney General Alberto Gonzales for refusing to pursue the death penalty in a case he did not believe warranted it, said he always met with defense attorneys before making a recommendation.
“It was my practice to meet with the defense attorney personally, because these are, among all the decisions you make as a prosecutor, the most important decision you will ever make. And that is to whether or not to intentionally seek to take another person’s life,” Charlton said. “So you meet with the defense attorney, and that attorney provides what mitigating evidence they believe exists to support an argument that their client ought not receive the death penalty.”
In Loughner’s case, Charlton agreed that Clarke has an uphill battle.
“As you know, Mr. Loughner has a very good lawyer, and she may be able to present some compelling set of facts or circumstances that would convince the Department of Justice not to seek the death penalty here. But that would be . an uphill battle.”
Regardless of the outcome of the federal case, Loughner is expected to face charges in state court, where he also could face the death penalty. The federal case only covers federal employees.
Burke and Pima County Attorney Barbara LaWall have agreed federal law requires state prosecutions to be suspended while a federal case is pending.